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Governance of the Multi-platform Media Landscape

Prof Peng Hwa Ang is Director of Singapore Internet Research Centre at the Wee Kim Wee School of Communication and Information at Nanyang Technological University, Singapore. His book, Ordering Chaos: Regulating the Internet argues for internet regulation. His research interests lie in the area of internet governance and his teaching and research interests combine law and communication, touching on internet law and policy, censorship, and the social impact of media. Prof. Peng Hwa was in Delhi to present a paper at the international conference on “Contours of Media Governance: Teaching, Disciplinarity, Methodology”, organised by Centre for Culture Media and Governance, Jamia Millia Islamia on February 25-27, 2013.

In an interview with Aradhana Sharma, a Ph.D. scholar with CCMG, Prof. Peng Hwa talks about internet regulation, the way forward and how the internet is pushing the ‘out of bounds markers’, the unwritten rules with which the media in Singapore has to comply. Excerpts:

ARADHANA SHARMA: Should the Internet be governed and regulated or allowed to exist and run as an open and anarchic space?

PENG HWA ANG: When the internet first emerged, there was a sense that this space could not be governed. The high water mark was John Perry Barlow saying to the governments and business people at Davos (World Economic Forum) that ‘governments had no space in cyberspace’ and ‘this is declaration of independence in cyberspace’. Since then, people have come to be aware of the fact that this approach does not work. My book, “Ordering Chaos”, was to make the point that the internet was being regulated, can be regulated and should be regulated.

There are two reasons for this. The problem is that many see regulation as a red light, as stopping traffic. My response is: do you want a city of only green lights? In order for traffic to move smoothly, you need some red lights and some green lights, so right away you need some regulations. Regulations are not always to stop things, sometimes they move things along, expedite things, remove hurdles. A classic example is what we call intermediary liability, so you have sites like Trip Advisor, book reviews on Amazon, movie reviews, if someone was to post defamatory content on those sites under the Indian law and Singapore law and British law the host itself will be held liable. So as a parallel package of internet specific laws you need to immunise the content providers, this is the only way business like these can work. In the US, because the laws were more liberal, business based on the internet did well and flourished. The laws in effect helped the economy. But in our part of the world laws are strict or not suitable for a new economy. In order to gain advantage we need to have rules not only to regulate, but also to promote. So rules should not only be seen as stopping but also as green lights.

ARADHANA: So if regulations needs to exist what is the best way forward and who should have more say in the process- governments, industry or the people using it?

PENG HWA: Lawrence Lessig wrote about the modes of regulation. His major contribution in this area was to point out that regulation, not just online, but in all aspects of life has four components. First there is the parliamentary, hard law. Then you have social norms which can be as good as laws. Even on the roads you have social norms, though they may vary from place to place, but you have them. Then you have market forces, which act as a form of law. They can determine things like price, quality etc. And the final one, which is the most important, is what he calls architecture, meaning that the code that is imbedded in the internet space can be used to regulate. On the roads, a good example of this could be a speed bump that would slow people down. So instead of putting a policeman to check speed, a speed bump is put as a part of the architecture. You need not one, but a combination of modes to regulate. Depending upon the situation some work better than the others.

Similarly, for self-regulation too you need four factors. You need a motivator in the street i.e. the industry must be motivated towards self-regulation. Second you need a mature market with small number of large players, not a large number of small players and ideally you need some kind of a government backstop. On the internet, often these four factors are missing. Industry is not really motivated; it thinks regulation is bad, full stop. Second, the market is not mature yet. In many areas it is still growing, even Amazon is still growing in double digits. In a mature market people are more conscious of the need to self-regulate but when the market is growing people do not care as much about the rules. We don’t have small number of large players, the numbers are still growing. Then the final point about government regulatory backstop, there isn’t one for the internet. Governments are very cautious about regulating it, and fairly so at this point of time. So, for the internet, in many areas, self-regulation will not work. Right now it works for advertising and mainstream media, but it may spill over to the internet.

ARADHANA: When we speak of regulation at the governmental level, does it need to be at the level of each country, inter-governmental or supra-governmental?

PENG HWA: It will depend. Lessig was the one to say that no one lives in cyberspace. By what he meant was: you don’t regulate the space itself, you regulate the people. Find out where are the people who are committing the offences and regulate them accordingly. If a guy sitting in Singapore is putting a server in India and indulging in wrongdoing, you go after him in Singapore, not in India. But in cases of things like child pornography, people have co-ordinated, European countries have co-ordinated. The biggest co-ordination was among 14 countries in a crackdown at the same time. It shows that at some level you can have some sort of government co-ordination. Around 30 countries also co-ordinate for consumer sweep for website fraud in marketing and they exchange information on actions. I am not sure if India is part of it, as you need a consumer law behind this. Co-ordination depends on the precise areas. There is a lot more co-operation among the Europeans, there is a hotline for example to discuss these issues. In Asia there have been discussions around how to set this up, but there seems to be no political will, for whatever reasons.

Prof. Peng Hwa Ang at Dayar-e Mir, Jamia Millia Islamia

ARADHANA: Are different countries responding to this differently?

PENG HWA: Countries are responding differently. There are two levels to this. One is at the big UN international level where the concern is that the internet is finally in the hands of the USA, ICAN, for example, the servers and all that. In fact, the BRIC countries have got together and they are looking at how they can have a little more say. At that level, the internet can potentially be fragmented. If you take China, the way it views itself and the internet is that they are a big country and do not have to toe the US line. It is not just about being a big country, but also having the wherewithal- space, technology, nuclear technology and a big population – it is an extension of geopolitics. Offline war [is] spilling on to the online world.

At a level the countries view themselves as major players. But at a lower level, say something like hacking or security, the ideal case would be to share information. There is something called a Computer Emergency Response Team (CERT) in all countries and I know that the CERTs do talk to each other. Even though there may be tensions at the national level, there is some dialogue here. There is some sort of co-operation at the technical level, it depends which level you are talking about.

ARADHANA: In an increasingly multi-platform media landscape, do we need to have specific policies for each platform or across platform rules?

PENG HWA: This is a more challenging area of regulation. It can be highlighted by the case of YouTube, which can host video content and the same video content can be shown on TV. The question is if there was some content that was either modified or censored on TV for the mass consumption but the original material was posted on YouTube, how would one respond? So, the logical answer is that it should be uniform. YouTube should censor to meet, say the Indian or the Singaporean standards. But the reality is that it is difficult, if not impossible. The reality is that you have to live with this inconsistency. There are two reasons for this. One, there is a huge amount of material out there and monitoring it would be impossible. The second is that if you were to censor to meet this norm there are other implications. For example, let us take the rape case, you can’t show it on TV, but you describe it in a newspaper. If you were to report it in a very graphical way then potentially the newspaper will have to be labelled, labelled ‘R’ (Restricted). If you want to be consistent, it makes it very difficult even for the old media. So you have to live with these inconsistencies for now. There are some principles that reduce this inconsistency; one is that you need some differentiation of the media. The sense is that since video content is easily viewed and consumed compared to say, a newspaper, it needs a higher level of censorship or regulation, whereas for reading you need imagination, you need to be literate, not many people read it, therefore you can do with less censorship or regulation. So some things can be mitigated, but some things will just remain and we have to live with those inconsistencies.

ARADHANA: How do you see the debate over content and carriage – liability issues?

PENG HWA: In Singapore, we have a good case for this as a model. Singapore is the first country in the world to immunise the content carrier for both civil and criminal liability. This was back in ’96. In the US, the Congress was to pass a Bill but we beat it by a few days. Also, the law in the US only immunises civil liability and not criminal liability. The Singapore law has been looked at and copied by many countries, including India.

Provisions since then have moved on, now you have something called a ‘take down notice’. So unlike earlier when action was initiated immediately, now there is some way to work around it. So, content and carriage issues can be worked out, but you need some sort of political view like we have in Singapore that carriage guy should totally be immunised. But not everybody thinks that way.

ARADHANA: Talking of the provision of ‘take down notices’, there have been cases of overuse or misuse of these, especially in India.

PENG HWA: You do need some procedures and some safeguards against this. So once you accept in principle that there should be ‘take down notices’, there should also be ‘put up notices’. There should be a way to put it up again if it is not found to be an infringement or liable.

ARADHANA: Can there be a balance between freedom of speech and internet regulation?

PENG HWA: Regulations depend on areas, and not all regulations are restrictive. Yes, freedom of speech regulation tends to be restrictive, censorial. But there are clear laws about what is not allowed to be spoken or said. So defamation is one clear area; copyright is another. Sometimes the community view is that some defamatory remark should also not be prosecuted on the grounds that community can self police and point out errors. But there are some areas- hate speech and racist speech- where it may be more difficult. In Singapore, there was a case where netizens pointed out bad remarks which were subsequently taken down, but the government still took action and convicted and put those who posted the content in jail. In political matters, as in the Singapore case, the feeling is that racial matters are sensitive and the government takes strong action to prove that it does not approve of such remarks against minority groups. But I would say that on the internet you definitely get more freedom of expression and there are ways to mitigate errors.

ARADHANA: Does this freedom mean that the internet is pushing ‘out of bound markers’ even in Singapore?

PENG HWA: Of course, the ‘out of bound markers’ are being pushed on the internet. There are rumours that ministers are finding it so difficult that a few of them want to resign from the cabinet. The ‘out of bound markers’ come about in cases where you can tell the media or the others what to do, but on the internet, it gets a lot harder. Unwritten rules are harder and you tell the unwritten rules to those who already know the rules, but on the internet not everyone knows all the rules in the first place. So, the concept of unwritten rules does not apply too well to the internet. The ‘out of bound’ rules do not work as well for the online media as they do for the offline.

ARADHANA: Will this allow the government to cede more space?

PENG HWA: Oh yes, the government (of Singapore) has effectively ceded more space. Even for traditional areas like defamation they have ceded more space to the surprise of many of us. They have actually refrained from suing bloggers even when they have been clearly wrong and instead sent take down notices. So, as I was saying there is now a movement towards ‘take down notices’.